The Queen v BM
[2015] NTSC 73
•2 November 2015
The Queen v BM [2015] NTSC 73
PARTIES:The Queen
v
BM
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING CRIMINAL JURISDICTION
FILE NO:21446213
DELIVERED: 2 November 2015
HEARING DATES: 10, 11, 12 August & 30 October 2015
JUDGMENT OF: BLOKLAND J
CATCHWORDS:
EVIDENCE – Sexual offences – Application to exclude recorded
statements – Whether there is a good reason for not admitting the recorded
statements – Whether evidence is misleading, confusing or unfairly
prejudicial – Whether the probative value of the evidence is outweighed by
the danger of unfair prejudice –Crown no longer seeks to rely on recorded
statements – No ruling on admissibility of recorded statements per se.
EVIDENCE – Sexual offences – Application for special sitting pursuant to
s 21B(2)(b) of the Evidence Act – Whether there is a good reason for not
holding special sitting – Whether proposed evidence would be misleading,
confusing or unfairly prejudicial – Whether the probative value of proposed
evidence would be outweighed by the danger of unfair prejudice –
Deficiencies in recorded statements that are not to be adduced as evidence
relevant to consideration of whether there should be a special sitting –
Whether best practice followed by interviewers – No interpreter present –
No support person present – No intermediary present – Deficiencies do not
amount to good reason for not holding special sitting – Proposed evidence of
complainant not excluded.
EVIDENCE – Sexual offences – Application for special sitting pursuant to
s 21B(2)(b) of the Evidence Act – Whether there is a good reason for not
doing so – Whether the special sitting would be an abuse of process –
Whether special sitting would facilitate the prosecution – Multiple recorded
statements.
EVIDENCE – Sexual offences – Complaint Evidence – Application to
exclude complaint evidence that does not refer to accused – evidence
excluded.
EVIDENCE – Identity evidence – Accused identified by name by police
officer – Not a case of visual identification – Evidence that the accused
known to the police officer – Any prejudice manageable by directions.
EVIDENCE – Identity evidence – Police computer checks to confirm
accused’s identity – Whether the probative value of the evidence is
outweighed by the danger of unfair prejudice – Evidence of computer checks
excluded.
EVIDENCE – Application to exclude record of interview between police and
the accused – Whether admissions reliable – Consideration of Anunga
Guidelines – Whether truth of the admission was adversely affected –
Circumstances in which admissions made – Relevant characteristics of the
accused – Record of interview excluded.
Evidence Act (NT), ss 21A, 21B, 21D, 26E.
Evidence (National Uniform Legislation)Act (NT), ss 66, 85, 135, 136, 137, Part 3.9.
Sexual Offences (Evidence and Procedure) Act (NT), s 4(1)
English v The Queen [2014] NTSC 38; Gudabi v The Queen (1983-84) 52 ALR 133; O’Brien v Nicholas [2015] NTSC 5; R v Anunga (1975) 11 ALR 412; R v SG (2011) 29 NTLR 157, referred to.
Dr Lorna Bartels, Police Interviews with Vulnerable Adult Suspects, Report 21, Australian Institute of Criminology, July 2011.
Les McCrimmon, The Uniform Evidence Act and the Anunga Guidelines:
Accommodation or Annihilation? (2011) 2 NTLJ 91.
Supreme Court of the Northern Territory, Interpreter Protocols, 3 June
2013.
The Australasian Institute of Judicial Administration (AIJA), Benchbook for
Children Giving Evidence in Australian Courts, 2012.
Ministry of Justice (UK), Achieving Best Evidence in Criminal Proceedings:
Guidance on Interviewing Victims and Witnesses, and Using Special
Measures, March 2011.
Northern Territory Police, General Order on Sexual Assault Response
and Investigation, 2014.
REPRESENTATION:
Counsel:
Prosecution: G McMaster
Accused:F Gerry QC
Solicitors:
Prosecution: Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: BLO 1510
Number of pages: 35
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v BM [2015] NTSC 73
No. 21446213
BETWEEN:
THE QUEEN
Prosecution
AND:
BM
Accused
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 2 November 2015)
Pre-trial Rulings
Background
The accused is charged with two counts of having sexual intercourse with a child (XB) under the age of 16 years, contrary to s 127(1) of the Criminal Code. Both offences are alleged to have been committed at Wurrumiyanga between 1 December 2013 and 1 February 2014. The Crown alleges the complainant was 13 years old at the relevant time.
At a mention of this matter on 30 October 2015, I gave rulings on the principal issues raised in the voir dire held in August. These are the reasons for those rulings.
The accused applied to have the trial stayed, and additionally or in the alternative, to have significant parts of the evidence excluded. It was argued the prosecution is “manifestly foredoomed to fail”[1] because of fundamental flaws in the evidence. Alternatively, it was argued that a large part of the evidence is inadmissible and the inevitable result will be that the case must fail. Finally, it was argued the prosecution should be stayed as continuing to trial would be an abuse of process of the court.
The complainant participated in three separate recorded interviews with police on 17 February 2014, 11 August 2014 and 12 December 2014. The accused participated in a police record of interview on 13 October 2014. The preliminary examination proceeded on the papers on 18 March 2015. The accused was committed for trial on three counts; the Crown has elected to present on the two counts outlined above. In as much as this shift in the Crown case has contributed to any confusion, that would ordinarily be addressed by the provision of particulars. It may not be an answer to all of the perceived problems with the evidence, but particulars should be provided if they have not already been sought and provided.
It is convenient to deal with the application to exclude various identified parts of the evidence first. The question of whether the prosecution is foredoomed to fail or whether there should be a stay on the grounds of an abuse of process will be dealt with in the light of the various rulings on admissibility.
Application to exclude the recorded interviews of the complainant
As mentioned, the complainant was interviewed by police on three separate occasions. Interviews of this kind are often referred to as “Child Forensic Interviews”. Under the Evidence Act the term is a “recorded statement”. Section 21A(1) of the Evidence Act defines a “recorded statement” as an “interview, recorded on video-tape or by other audiovisual means, in which an authorised person elicits from a vulnerable witness statements of facts which, if true, would be of relevance to a proceeding”.
Clearly the complainant is a “vulnerable witness” in the terms of the s 21A(1) of the Evidence Act; she is a child and the alleged victim of a sexual offence. Added to this, she is from the Tiwi Islands and English is not her first language.
It is in part because of the acknowledged vulnerabilities of the complainant, coupled with interviews allegedly conducted without police being sufficiently cognizant of her vulnerability, that the accused seeks to exclude all of the evidence gathered in the interviews.
More particularly, it was argued that all three interviews should be excluded on the basis of the discretionary exclusions contained in ss 135-137 of the Evidence (National Uniform Legislation)Act, that provide for the exclusion of evidence that is misleading, confusing and unfairly prejudicial and/or where the probative value is outweighed by the danger of unfair prejudice to the accused.
At a mention of this matter prior to the voir dire, counsel for the Crown informed the Court that the Crown would no longer rely on the recorded statements, but would seek to proceed at trial by calling the complainant to give her evidence at a special sitting to allow her evidence to be pre-recorded pursuant to s 21B(2)(b) of the Evidence Act.
The interview between the complainant and Officer Hall on 17 February 2014 (the first interview) cannot, as a matter of law, be admitted as a recorded statement at trial as it is a sound recording only, not an audio-visual recording as required by the Evidence Act.
Given the Crown no longer seeks to adduce any evidence from the recorded statements, in my view there cannot be a definitive ruling on the admissibility of the interviews themselves (aside from noting that the interview of 17 February 2014 cannot in any event be admitted even if the Crown had sought its admission).
Section 21B(2) of the Evidence Act prescribes that with respect to the evidence of a vulnerable witness, the court may exercise “one or both” of two powers: it may either admit a recorded statement as all or part of the evidence in chief, or hold a “special sitting”, or both.
The consequences of non-reliance on a recorded statement should be distinguished from the procedure under s 21B(2)(b) of the Evidence Act, when the Court exercises the discretion to hold a special sitting for the purpose of conducting the examination or part of the examination of the witness. In the case of pre-recorded evidence at a special sitting, the Crown cannot decline to call a witness at trial or retrial who has been examined in compliance with s 21B(2)(b) of the Evidence Act. With respect I agree with the analysis of Barr J on this point, discussed by his Honour in R v SG.[2] The effect of the power conferred on the Court under s 21B(2)(b) is that if the Court holds a special sitting, it must comply with the whole section, including the replaying of the recording to the jury.
Although the Crown has taken what might be considered an unusual course, it is apparent that all of the recorded statements would require substantial editing if they were to be admitted, given they deal with sexual activity, not only as alleged between the complainant and the accused, but also between the complainant and other males. Unless leave is granted, large parts of the recorded statements would not be admissible under s 4(1)(b) of the Sexual Offences (Evidence and Procedure) Act. To obtain leave, the evidence must have “substantial relevance to the facts in issue”.
If the prosecutor had asked the Court to admit the recorded statements into evidence under s 21B(3) of the Evidence Act, the Court would be required to accede to that request unless there was good reason for not doing so. Editing may still take place to remove irrelevant or inadmissible material under s 21B(4) of the Evidence Act. The Court retains all of its discretions to exclude the evidence, once the evidence is before it.
I appreciate that on behalf of the accused it is being submitted that the content of the recorded statements is the evidence and should be ruled on. Effectively what is sought is that the complainant not be permitted to give evidence because of the poor quality of the evidence in the recorded statements. The real issue is whether it would be unfair to the accused for the Court to now hold a special sitting under s 21B(2)(b) of the Evidence Act in the light of the evidence collected in the recorded interviews. Although the evidence in the recorded interviews is not now to be adduced, the recorded interviews and any deficiencies that may have tainted the subsequent proceedings, as is alleged by the accused, are relevant to determine whether there should be a special sitting in which the complainant would be entitled to give evidence.
Application to conduct a special sitting pursuant to section 21B(2)(b) of the Evidence Act; admissibility of the complainant’s evidence
As indicated, the Crown seeks a special sitting for the complainant to give her evidence, a course opposed by the accused. Senior counsel for the accused argued that the Court would be engaging in the investigative process or facilitating the prosecution if, in the circumstances of this case, it permitted pre-recoding of the complainant’s evidence. To engage in such a process would, it was argued, also constitute an abuse of process.
The Court is obliged to accede to the prosecution’s request for a special sitting “unless there is a good reason for not doing so”.[3]
Although the argument is not couched in precisely those terms, in effect, the argument concerning the quality and the probative value of the complainant’s recorded statements is a significant factor relevant to the question of whether there are good reasons to decline the application to have the complainant’s evidence pre-recorded.
Based on what has been disclosed in the recorded statements, it was submitted that the evidence as it currently is, and any evidence to be given that is based on those statements, is misleading, confusing and unfairly prejudicial. It is said its probative value will be outweighed by the danger of unfair prejudice. These submissions rely on the discretions allowing the Court to exclude evidence under ss 135 and 137 of the Evidence (National Uniform Legislation)Act.
On behalf of the accused, counsel relies on a large body of work relevant to best practice for interviewing and questioning vulnerable persons. In broad terms, it is argued the failure to comply with best practice procedures has diminished the probative value of the evidence to the point that it should be ruled inadmissible through the operation of the discretions. It was submitted the reliability of the evidence is tainted through the poor quality of the investigation, that it is prejudicial, and that no evidence of the complainant should be admitted, including any evidence that could potentially be adduced at any subsequent pre-recording.
A number of specific matters raised were said to illustrate reasons why the content of the interviews was so deficient that the evidence should be excluded. This included the complainant’s conflicting accounts about the number of times she had sex with the accused, describing ‘once’ in the first interview conducted on 17 February 2014, and “twice” in the second interview conducted on 11 August 2014. Further, that there is inconsistency in her accounts about where she had sex with the accused. In the second interview, she first stated sex took place in the accused’s room on both occasions; later she stated that the second occasion was at her house. The dates of commission of the alleged offences are not clear in the interviews. In the second interview, the complainant stated it was “last year ago” and “when they had Christmas”.
Officer Moir, who conducted the second interview with the complainant, acknowledged she had introduced, by her questioning, the question of sex with “Brad”. She then asked the complainant how many times because, she said, she was asked to obtain further information following the first interview by Officer Hall. She acknowledged she had led the evidence of “once or more than once” and that the complainant had not told her she had sex with “Brad” prior to that point.
A great deal of the questioning in the first and second recorded statements is directed to eliciting an explanation from the complainant about what she meant when she said they had “sex”. She gave a number of explanations including “kissing”, “normal sex” and “fucking”. She later gives an explanation of ejaculation, that sex is for babies, and that the accused did not have a condom. She used the Tiwi language to explain male and female body parts. Towards the end of the second interview, it becomes somewhat clearer that the complainant is speaking of penetrative sex. It is not clear at that time in the interview however, that she is speaking particularly of the accused. At the conclusion of the second interview, if that interview is read as a whole, it is open in my view, to conclude what the complainant is referring to when she refers to “sex”. It was pointed out on behalf of the accused, the definition of this offence includes non-penile penetration, however, when read as a whole, the second interview appears to refer to penile-vaginal penetration. There is no indication that other forms of penetration were being described by her. Ultimately if the trial proceeds, this will be a matter for the jury.
In my opinion, the nature of the complainant’s evidence, the inconsistencies, the lack of detail and other deficiencies, are not to the level to justify exclusion of the complainant’s evidence. This does not amount to a good reason not to hold a special sitting. The material in the recorded statements is likely to be used to test her evidence. Concern was expressed that this may require cross examination of the complainant about other males she states she has had sex with. As noted already, this would require leave pursuant to s 4(1) of the Sexual Offences (Evidence and Procedure)Act. However, this does not in my view present a good reason to exclude her evidence or to refuse to hold a special sitting. It would have been preferable had the recorded statements not included questions about all potential offenders, however, this appears to have occurred because of the way early disclosures of the alleged offending was made. It appears to be the way this matter and other potential offences came to light. It would have been preferable had each matter been separated during the investigation, however, this does not present a good reason not to accede to the Crown’s request to allow the complainant to give pre-recorded evidence.
In terms of the standard of police questioning of the complainant, a number of deficiencies have been pointed out to police officers who gave evidence on the voir dire. Some deficiencies have been acknowledged by those investigating officers. The Northern Territory Police General Order on Sexual Assault Response and Investigation (2014), Guideline 3 provides that investigative interviewing techniques are designed to elicit the “best information” from victims of serious crime such as sexual assault. Interviewing techniques as a means to achieving the best evidence with vulnerable witnesses drawn to the Court’s attention in these proceedings include:
·The establishment of good rapport, including establishing the ground rules and advising the interviewee that it is acceptable to say if they do not understand or know the answer;
·Obtaining as much free narrative as possible, encouraging the interview with prompts and open ended questions;
·Asking questions of the right type in the right order. Open questions precede specific questions, then closed questions. Leading questions are a last resort;
·Having meaningful closure, including summarising the evidence and providing an opportunity to correct errors; and
·Evaluating the interview.[4]
There is, in my opinion, great merit in the use of the guidelines that have been referred to by counsel in respect of interviewing vulnerable persons, be they victims or accused. Police witnesses called in these proceedings attempted to comply with their own training when interviewing the complainant. As mentioned, investigating police acknowledged certain deficiencies in the interviews with the complainant.
Officer Hall, who conducted the first interview with the complainant acknowledged that the complainant was vulnerable. He agreed this was because she had complained about the behaviour of several males, she was from the Tiwi Islands, she was young and that her first language was Tiwi. Officer Hall said her English was fine. He pointed out that she was attending school at Kormilda College. He agreed, however, it was difficult for the complainant to talk about sexual matters. It was confusing about which boy did what and overall he agreed that the interview was confusing. He explained the training he had been given was the Advanced Diploma in Child Forensic Interviewing, and the Vulnerable Witness Course, from the Australian Federal Police.
He said he found it difficult to speak with the complainant, which is why he arranged a female police officer to speak with her in the second interview. He agreed he did not arrange for an interpreter or a support person for the complainant.
In the second interview with Senior Constable Kelly Moir, the complainant said that she did not want to talk to Officer Hall because he was male and she was embarrassed. Clearly the first interview was not in accordance with best practice for these situations and did not produce a coherent account of the information that the complainant could give.
Senior Constable Kelly Moir identified a number of difficulties with the interview she conducted with the complainant. In giving her evidence she was genuinely open to analysing her own practice about questioning vulnerable persons, including the complainant. She acknowledged errors that may have been made when conducting the interview. She acknowledged that having an interpreter, or someone to help the complainant communicate, would have been of assistance. It was acknowledged communication aids were not used. Senior Constable Moir did build rapport and primarily used open questions. She had received training and taken courses relevant to interviewing vulnerable child witnesses. Her evidence was that she thought the training was not enough.
Officer Francine Adams, who conducted the third interview with the complainant, said that because of concerns about people finding out in the community about a complaint or about an interview with a complainant, interpreters are not readily sought to give assistance. Officer Adams said she did not think the complainant needed an interpreter. The complainant did not provide additional information of significance to Officer Adams. She indicated during the third recorded statement that she did not want to speak further about these matters to Officer Adams.
There is some acknowledgment by investigating officers that the interviews were not conducted according to best practice principles as discussed in a number of respected professional guidelines on the interviewing of vulnerable people and young people. It is clear that the complainant needed an interpreter to discuss a matter of such importance. This is particularly with respect to describing what she meant by sex and what type of sex she was saying happened. Although she may well not have needed the assistance of an interpreter for ordinary day to day conversation, in the situation of a formal interview at the point of discussing specific sexual matters, she was unable to express herself properly in English. Support persons or intermediaries may also have assisted with communication or at the very least could have ensured there was no mis-communication.
The failure to obtain a Tiwi interpreter when trained interpreters were clearly available through the Aboriginal Interpreter Service has most likely reduced the quality of the evidence. Trained interpreters are ethically obliged to keep matters confidential. The Supreme Court’s Protocols for working with interpreters provide at 1.1, “In any proceedings where a party or witness who speaks limited English or has difficulty communicating in English in a courtroom context” an interpreter should be engaged.[5] It is the context that necessitates the need for an interpreter as well as an assessment of any English language limitations.
Despite the deficiencies in the evidence collected, this does not provide a sound reason not proceed to pre-recorded evidence. The deficiencies in the evidence due to the procedures used are likely to be detrimental primarily to the complainant’s evidence. When the second interview is considered, there is sufficient probative value demonstrated to permit evidence to be given by the complainant. I appreciate the accused could be at some disadvantage by virtue of not knowing with precision what evidence might be given at the special sittings. The expectation is that the evidence would be along the lines of that disclosed in the interviews with the complainant. If there is a significant departure, that issue may need to be dealt with at the time by remedial procedures. It has also been indicated there will be an interpreter to assist the complainant giving evidence. Once again, there are mechanisms short of ruling the complainant’s evidence inadmissible that would protect the accused should this mean unexpected or higher quality evidence is given.
Counsel for the Crown Ms McMaster drew the analogy with multiple written statements being taken from complainants (as occurred prior to the various mechanisms available under the Evidence Act) and subsequently evidence in chief being given by the witness. She emphasized it is the witness evidence that is important, not the previous statements. In cases involving vulnerable persons, it is often the case that previous statements contain major inconsistencies, sometimes there are significant errors, poor expression and may well be confusing. The recorded interviews here may not represent the best available evidence, however, s 21D of the Evidence Act must also be considered.
Section 21D(1) expresses the intention of the Legislative Assembly that “child witnesses be given the benefit of special measures”. Those special measures include such procedures as a special sitting. It was argued that the proposed pre-record will be the fourth time the complainant tells of the events; that recording the child again by way of pre-record is contrary to best practice; that it is cruel to the child witness; and that it would facilitate the prosecution having a further investigation. The procedures contained in Part 3 of the Evidence Act were intended to limit the re-telling of events, however, counsel for the Crown informed the Court that the complainant does wish to give evidence and is to be proofed by the prosecutor. It must also be remembered that had this matter proceeded in the usual course, the complainant would have been required to attend for cross examination in any event.
The alternative to allowing the complainant to give evidence at a special sitting is not satisfactory. It is no answer to an investigation that has deficiencies to effectively stop a child complainant from giving evidence. That course would not be in keeping with s 21D of the Evidence Act and would limit access to the Court. Although there are deficiencies in the evidence and its quality may be diminished, it is not at the point where it may now be concluded that the probative value is so low, or that allowing the evidence to be given would be so unfair to the accused, that it should not be admitted. Although there may be difficulties determining whether evidence may be permitted by virtue s 4(1) of the Sexual Offences (Evidence and Procedure) Act, in my view this and other problems should not be seen to taint the whole proceedings. The special sitting proposed will proceed to allow the complainant to give evidence.
I record here some of the materials referred to the Court that would be useful to investigators when dealing with vulnerable persons, both witnesses and suspects. It was pointed at that one of sources for the AIJA Benchbook for Children Giving Evidence in Australian Courts,[6] is the United Kingdom Criminal Justice System’s Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures.[7] Those are highly informative materials. Adoption of these practices would encourage obtaining the best possible evidence, however, the remedy here for the failings in the collection of the best possible evidence is not to stop the child giving evidence or refuse to admit the evidence.
It does not appear that proper consideration was given to whether a support person should have been available at the recorded interviews, or whether an interpreter should have been engaged. This has led to a less coherent account of the particular acts alleged than is ideal. I have already mentioned that in the second interview the description of what the complainant describes as “sex” does become clearer using words in the Tiwi language.
The deficiencies identified do not, however, lead me to the conclusion that the proposed evidence should be excluded.
Evidence of Nicole Norman
Ms Norman, the clinical nurse at St Johns College, provided a statutory declaration of her interaction and conversations with the complainant. The complainant made certain disclosures to her. A series of her notes were annexed to her statement. What is sought to be led broadly complies with s 66 of the Evidence (National Uniform Legislation)Act. There is no real issue that the events were not “fresh” in the mind of the complainant, however, in my opinion the representation lacks probative force as it refers to the complainant having sex with multiple males, that she did not want to have sex, that she was humbugged and the males were “back home”. In this particular case, the proposed evidence lacks the probative force required because the accused is not named or otherwise referred to by her, in circumstances where the evidence is that she knows him. There is no complaint or representation made by the complainant about the accused. What is described by the complainant in respect of the other males is not consistent with what she has said in the interviews about sex with the accused. I would not allow the evidence of paragraphs [15]-[16] of Ms Norman’s statement to be given. For similar reasons, in my view the same evidence is not admissible under s 26E of the Evidence Act. The proposed evidence is likely to be prejudicial.
If it can be led in a neutral way, evidence should be permitted that the complainant saw the nurse on 11 February 2014 and police were contacted, to explain the timing of when police became involved.
In my opinion the representation by the complainant requesting an Implanon removal is admissible. It seems likely the complainant’s evidence will include some reference to not wanting to have a baby, if her evidence is similar to what she has said previously. Otherwise the balance of the evidence proposed from Ms Norman should be excluded.
In the context of a clinical appointment, I cannot see that Ms Norman’s involvement with the complainant has tainted all the subsequent evidence relating to the question of “force”. The note of the consultation on 11 February 2014 indicates the complainant said she did not want to have sex with the people, said “no” and was humbugged. The note indicates Ms Norman asked her if they forced her by hurting her and that the complainant said yes. That seems a natural follow up question to ask after the description she gave in the clinical setting. From the material before me, Ms Norman’s involvement appears entirely as would be expected from a school based clinical nurse. Although it has an element of being leading, and I am not suggesting it is admissible, I would not agree it has tainted other evidence. The use of the word “forced” is ambiguous when it is used by the complainant. The ambiguous nature of the word “force” when used by persons speaking nonstandard English is not an uncommon problem. It should not be admitted, but I would not use this issue as any basis for finding subsequent evidence inadmissible.
Identity Evidence
The complainant has referred to events involving “Bart”, “Brad”, “Buddy” or “Bartholomew”. Although it requires reviewing all of the recorded interviews, I am satisfied these various names mentioned by the complainant refer to BM, who is known to the complainant. Ultimately, it will be a matter for the jury. The complainant does not have any difficultly discussing or referencing BM in the first recorded interview. It is clear she knows him by various names. She spelt various versions of his names in the third recorded interview. The complainant refers to the accused’s girlfriend as CT or KT. On a number of these issues and the degree to which the complainant and accused knew each other, there may be other evidence.
I was told birth certificates for both the accused and the complainant would be produced and that there may be further evidence about their identity. There is objection to the evidence of Sergeant Downie, who gave evidence to say he knew the accused as BM and had previous interactions with him. He knew family members of the accused also. Sergeant Downie was not aware of anyone else known as “Bart” on the Tiwi Islands. Sergeant Downie was tasked with finding BM as part of the investigation. His name was given to him by Officer Hall (who had obviously interviewed the complainant). Police were advised by prosecutor Matthew Nathan to speak to two adult offenders, and one was BM. Sergeant Downie gave extensive evidence about his knowledge of BM. Police computer checks were also utilized to find BM.
Considering the committal papers, the evidence given at the voir dire and as far as can be seen, the proposed evidence, it would seem the evidence points strongly to the conclusion that accused is the person known at Wurrumiyanga as BM. I accept that at this time there is no direct identification of BM in person by the complainant. She refers to him by name or names. As to whether he is the BM she is referring to, it is likely this will be resolved by other evidence. Ultimately, it will be a matter for the jury and appropriate directions if there is any potential for an erroneous identification, on the question of whether the accused is the BM spoken of by the complainant. Directions and warnings may be required if it is thought to be prejudicial for a police officer to state he knows the person known as BM. That is classically an area for directions. In these circumstances, I would not require a video identification procedure to admit evidence that the accused is the person known as BM at Wurrumiyanga. This is not a case of visual identification evidence as contemplated by Part 3.9 of the Evidence (National Uniform Legislation) Act. I understand it is proposed to call others in the community, for example Karina Babui, who may attest to the accused and complainant knowing each other. The complainant mentions the accused by name, although she uses different names for him.
Although the issue of familial relationships and naming systems on the Tiwi Islands has been raised in a general way, it is not clear how this might detract from the evidence as it stands at this time.
As I understand the case at this time, identity about whether the person known as BM is the accused and whether he is the person the complainant says had sex with her will be in issue. I would not exclude the evidence of police about knowing who BM is for the limited purpose of proving the accused is BM. I would however exclude the evidence of locating BM on police computer checks. That is evidence that could only be prejudicial and at this time I do not see that it adds weight to the evidence.
Admissibility of the Accused’s Record of Interview
The accused was interviewed by Officers Hall and Adams on 13 October 2014 at Wurrumiyanga police station.
In the substance of the record of interview the accused gives a number of accounts that amount to accounts of sex with the complainant. My first impression of the record of interview, including many of the responses of the accused, was that the content of the interview was unreliable. Having reviewed all of the material, I am not dissuaded from that view. The record of interview with the accused will be excluded. I will attempt to summarise the main parts of the interview.
The accused stated at one point that his relationship with the complainant was six or seven months ago and that he was on “the prowl” through Facebook, Diva Chat and texting. What he meant by “prowl” was not clarified at that time. Asked about the complainant, he said she is not his girlfriend anymore and that he’s been with CT for two years now.
He agreed with the proposition that CT is his “proper girlfriend”. He then clarified “prowling”, saying that he meant he was looking for gunja in the middle of the night with the other boys. He speaks of seeing the complainant. Officer Hall asked if that was the complainant that he saw wandering around. He was asked what time of year it was. The accused answered initially by giving times rather than references to dates or times of the year. He was asked what time of year it was and he stated two months ago. He said that maybe she thought he was single. He spoke of “her” viewing his profile every 10 seconds. Asked what she wanted from him and he said “root”, meaning “sex with the girls”. He was then asked what was the last time he had sex with XB and he said it was two months ago. He speaks of them “just doing it” and says this is walking around, looking at each other and online. She chased him. They had marijuana and they did what “she wanted to do”. Asked what that was, he said “I don't know, sex”. He said it was at the drains at Forestry. He said she was laying down first. He came on top of her and she wanted to have sex with him. He used a condom. Asked again when it was and he said the last couple of months; then he said a couple of weeks. Asked whether he can say before then how many times he had sex with XB and he said just that one.
It was put to him that the complainant had told police they were boyfriend and girlfriend for a little while last year and he said “nup, not even”. At a later point he was asked how old the complainants was and he said he guessed she is probably 16/15, 16. He said she’s probably at the age of his little brother. Probably 16. Asked what age he thinks she is now and he said 15/16.
He was told that the complainant had said they slept together a couple of times at his house last year. Asked if he remembered and he said “I do”. Asked if he had sex with her last year and he said “yeah”. He spoke of her being “that young”. He was asked how old she was when he first started having sex with her and he said 15. Asked if that was last year and he said yeah. He said it was in the same area. The drains. He then appeared to correct that and said “I didn’t last year, only this year”. He said that was like last month ago and it was the first time. He was told it was now October and he said it was 10 months ago. Asked again how many times they had had sex and he said twice, once at the airport and once at home.
In relation to the one at home he said she was walking around herself. He said it was when he was single and he was texting girls. She walked in, straight for the bed and the party started. Asked if he ever asked the complainant to have a baby for him and he said no. Asked how long he’d been with CT and he said probably two years. He said after he told CT she wanted to fight. He said he thinks XB is 16 now. Asked if she was too young to have sex, he said definitely (inaudible) she was. Asked if the complainant told him she was 13, he said no. Asked again, by Officer Adams, how many times he had sex with the complainant, he said two times, one at home and one at the airport. He said it was late last year, and then he said it was late this year. He said it was passed three months, two months, three months ago. He then added four months. He agreed he said he used a condom at the airport. He used it when he had sex with the complainant.
Asked if he knows why he is in trouble, he said “child abuse”, “but she wanted it”. When Officer Hall said “But I believe you, but how old is she, how old is XB?” The accused answered, “13, 14 now”. Asked how he knew that and he said “youse tell me”. He said “I thought she was 15 or 16”.
Asked if he answered all the questions of his own free will and he said “no”. Asked if he was forced to speak to police and he said “yes”. Asked if they did anything to make him talk and he said “no”. He agreed he participated voluntarily, saying “yes, sir”. Asked how he felt police treated him and he said “annoyed”. Asked if police did anything bad to him and he said “no”.
At a very superficial level, the accused appears to be answering and understanding some of what is said. Answers about dates, times and ages are extremely inconsistent and confused. Apart from some very basic matters and answers given in a simple way, the resulting interview as a whole is confusing. I am concerned about the reliability of many of the answers given by the accused.
Once again, in my opinion, while at times he appears to speak reasonable, quite heavily accented conversational English, his answers in some parts (such as the questions at the end) make little sense. His English could not be described as standard English. His references and answers to dates or times and other important subjects are at times responsive to the questions but marginally so.
My concerns about reliability were heightened when I read the s 140 (Police Administration Act) transcript and listened to the caution being administered at the beginning of the interview. The commonly used safeguards that are so often used by police officers in the Northern Territory that potentially would remove doubts as to the reliability of the answers given were not used. These techniques include seeking a demonstration of an understanding of the caution or by engaging the assistance of an interpreter or a prisoner’s friend or both.
In relation to the s 140 transcript, the accused agreed he been placed under arrest. Asked if he understood what he had been arrested for, he said “nu”. He was told when arrested it was for sexual offences in a relationship with XB. Asked if he remembered that, he said “Yes, sir”.
The next part of the transcript of the s 140 is as follows:
HALL:Ok, mate. Do you understand, mate, that before you say anything to me that you do not have to say anything to me?
BM:No.
HALL:Ok. And that anything you do say may be given in evidence?
BM: Yes, sir.
HALL: Ok. So wh, (sic) explain that to me what that means?
BM: Ah - I don’t know to s, (sic) how it happened.
HALL:Ok, no, not about that, mate, about that caution I just gave you, that you don't have to say anything but anything you do say may be given in evidence. Can you explain that to me? What does that mean to you?
BM: Um - I haven’t a clue.
HALL:Ok. If you don’t wanna’ talk to me, do you have to talk to me?
BM: Only in your presence.
HALL:Ok. If I put questions to you and you don’t wanna’ answer them, does that mean you can be quiet?
BM: No.
HALL:Ok, mate. So, if I ask a question, do you have to answer me?
BM: Yes, sir.
HALL:Alright. But if I ask a question, you don't have to answer me, you have the right to remain silent. Ok?
BM: Yes.
HALL:So if I ask you a question and you don’t wanna’ answer, you don't have to tell me, ok?
BM: Yep.
HALL:So what, so if I ask you a question, do you have to, do you have to, do you have to tell me the answer?
BM: No.
HALL:Ok. And if you do tell me, who might hear that one? Who’s gonna’ hear that evidence?
BM: Evidence.
HALL: Yep. Will the Magistrate listen to that stuff?
BM: Nup.
HALL: Ok, if you do tell me something, ok.
BM: Yeah.
HALL: …if you do decide to speak to me, that can be given as evidence, that means like the magistrate will hear it or the jury, or other people will hear it. Do you understand that?
BM: Yes, sir.
HALL:Ok. Do you want anyone notified that you’re here?
BM: Hmm, nup.
HALL: Do want any legal, Legal Aid contacted?
BM: Nope.
HALL: Ok.
BM: Yep, I’m right.
I appreciate the s 140 conversation is done for particular purposes in the investigation, however, the responses of the accused in that conversation are a clear indication of a problem with understanding concepts such as those contained in the caution. It is important to acknowledge the need to proceed with care is not solely about the suspect’s understanding, it is about whether they can fairly explain their position. It is a fair point that Police General Orders and the Anunga Guidelines are guidelines, and are not rules of law.[8] However, the accused clearly fell into the category of persons for whom the Anunga Guidelines applied and usually in these circumstances police take steps to apply them. The guidelines apply to any person being questioned as a suspect unless “that person is as fluent in English as the average white man of English descent”.[9] Professor McCrimmon, with respect, correctly analyses the current status of the Anunga Guidelines as continuing to apply as guidelines for the conduct of police in the interrogation of Indigenous persons, notwithstanding the rules of admissibility of evidence are governed by the Evidence (National Uniform Legislation)Act.[10]
The s 140 conversation indicates more was required to ensure there would be no miscommunication between police and the accused during the record of interview. The record of interview relating to the caution is as follows:
Question:“Okay. Before either myself or Agent Adams speaks with you or ask you any questions, you must understand that you’re not obliged to say or do anything unless you wish to do so, okay. Now I said that to you earlier today, now can you explain to me what that means, that you’re not obliged to say or do anything unless you wish to do so, what does that mean to you?
Answer:Yeah, I don’t have to take orders from youse.
Question:That’s right mate. So if you don’t want to speak to me you don’t have to.
Answer:Yep.
Question:Okay. I must also inform you that anything you do say or do will be recorded and may later be given in evidence. Do you understand that?
Answer:Yep.
Question:Okay. What does that mean to you? If what I’m say….. (Inaudible) in evidence.
Question:Okay. So that machine, whatever you say or whatever we say, that machine is going to record it and the means.
Answer:Yep.
Question:…a jury or a Magistrate or other people can see that one if it goes to court.
Answer:Yep.
Question:do you understand that?
Answer:Yes, sir.
In the light of the answers given in the s 140 interview, and at the start of the record of interview, the accused should have been asked in accordance with Anunga Guidelines to explain the caution on his own words, phrase by phrase. This is especially important given the words “not obliged” was used.
To safeguard reliability, once again in accordance with Anunga Guidelines an interpreter should have been engaged. Interpreters were available at the time. Officer Hall’s evidence was that he asked the accused if he wanted one, but he did not want one. That is not recorded in the s 140 conversation or elsewhere, so it is difficult to know how the accused was asked and whether he was encouraged to have an interpreter, given the seriousness of the charges and the details he was to be asked about.
I accept Officers Hall and Adams genuinely thought they had good rapport. Accuracy was important in this interview which was for serious offences. I cannot be satisfied as to accuracy of expression or that miscommunication did not take place. Officer Hall agreed in evidence that having another person there to help would have been easier for himself and the accused. Tiwi language interpreters are regularly engaged in recorded interviews between police, witnesses and/or suspects. Officers Grotherr and Downie both gave evidence to the effect that they know the accused, they speak with him in English, including joking around (Officer Grotherr) and about more serious matters. Sergeant Downie told the Court he always converses with the accused in English.
I have played a previous record of interview undertaken by the accused from 11 March 2013. He was dealt with in the Court of Summary Jurisdiction for offences in 2013 and 2014. In December 2012, he was offered an interview and declined to speak to police. The previous police interactions with the accused are about far less serious matters, some time ago and do not persuade me to view this interview in a different light. The issue however is not simply whether all officers believed that the accused understood. It is important that the suspect be able to fairly explain his side of the story without miscommunication.
Officer Hall agreed the allegations containing the details of sexual intercourse were not actually put to the accused, but rather terms were used such as “sex” and “sleeping with”. He agreed it would have been simple to put the allegations. He also appeared to agree that there were difficulties with the accused explaining his issues at the end of the interview.
Within the s 140 conversation, the accused did clearly communicate that he did not want anyone contacted and that he did not want Legal Aid contacted. Those matters do not form the basis of my decision to exclude the record of interview, although it is possible that a prisoner’s friend or lawyer could have helped to correct the problems identified with the interview. This interview involved basic problems of miscommunication. There was no demonstration of the understanding of the caution, or the allegations, or the significance of the allegations. Further, it strikes as unfair, the apparent inability to articulate or explain a response that, depending on the evidence the jury accepts about when sex or if sex took place, may be relevant to a defence. I appreciate that on the Crown case the impugned acts could only have occurred when the complainant was 13 and therefore no defence on that case would be available. One potential scenario from the interview with the accused is that he could be saying he had sex with the complainant at another, later time, not the subject of the charges.
In my view, s 85(2) of the Evidence (National Uniform Legislation Act applies. To be admitted, the circumstances of the admission must be such as to make it unlikely that the truth of the admission was adversely affected. Pursuant to 85(3)(a) of the Evidence (National Uniform Legislation)Act, the Court may take into account relevant characteristics of the person to determine this matter. Here the relevant characteristics include that the accused’s first language is not English; that he speaks a non-standard form of English; that he was in custody when spoken to; and that it was not demonstrated he understood the caution or the allegations against him or their significance. The allegations against the accused were not properly explained, hence there are responses that do not accord with the questions or the relevant charges. The accused was quite young, possibly still an adolescent at 20-21 years when spoken to. He did not exhibit the maturity of an adult. The circumstances made it likely that the interview was unreliable in the sense of s 85(2) of the Evidence (National Uniform Legislation) Act.
The record of interview with the accused conducted on 13 October 2014 will be excluded.
Abuse of Process/Case foredoomed to fail
Consistent with the conclusion that the pre-recorded evidence should proceed, I conclude it is not an abuse of process to allow the case to proceed, indeed the Court in this instance is obliged to utilize procedures provided in s 21B of the Evidence Act. I do not characterize the utilization of these procedures as facilitating the investigation or prosecution. At this time the case cannot be said to be foredoomed to fail. That matter may be revisited at another time. Currently the application is premature. The complainant’s evidence will not be excluded and the special sitting for the pre-recording of her evidence is scheduled for 9 November 2015.
The rulings are:
1. The proposed evidence of the complainant will not be excluded.
2.The special sittings for the pre-recording of her evidence will be permitted and is listed for 9 and 10 November 2015.
3.The record of interview of the accused of 13 October 2013 is excluded.
4.Save for the reference in the police evidence of making “computer checks”, evidence by police that the accused is BM and that he is known as BM is admitted. (Refer to paragraphs [48]-[51] above).
5.Paragraphs [15]-[16] of Ms Norman’s statement is excluded. (Refer to paragraphs [43]-[46] above).
By arrangement with counsel who appeared at the mention on 30 October 2015, these reasons will be forwarded by email.
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[1] English v The Queen [2014] NTSC 38; O’Brien v Nicholas [2015] NTSC 5.
[2] (2011) 29 NTLR 157.
[3] Evidence Act, s 21B(3).
[4] Dr Lorna Bartels, Police Interviews with Vulnerable Adult Suspects, Report 21, Australian Institute of Criminology, July 2011. Greater detail about techniques for achieving best evidence from vulnerable witnesses referred to the Court are contained in the UK Ministry of Justice Achieving Best Evidence in Criminal Proceedings (2011), adopted in various Australian publications dealing with the subject.
[5] Supreme Court of the Northern Territory, Interpreter Protocols, 3 June 2013, 1.1.
[6] The Australasian Institute of Judicial Administration (AIJA), 2012.
[7] The March 2011 edition was provided to the Court.
[8] Gudabi v The Queen (1983-84) 52 ALR 133.
[9] R v Anunga (1975) 11 ALR 412.
[10] Les McCrimmon, The Uniform Evidence Act and the Anunga Guidelines: Accommodation or Annihilation? (2011) 2 NTLJ 91.
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